Scottish Court of Session Decisions

This was an action of multiplepoinding for the distribution of the estate of the deceased John Walls, in which his testamentary trustees were the real raisers.

A share of the trust-estate went under the truster's settlement to his son Thomas Walls, for whom a claim was lodged. Creditors of Thomas Walls also lodged riders. Amongst these was a claim for John Drynan and mandatory, foupded upon a decree obtained in the Court of Session on 23rd October 1886, in an action at the instance of Drynan against Thomas Walls. In that action letters of arrestment to found jurisdiction were signeted on 20th September 1886, the summons was signeted on 21st September, and the letters of arrestment were executed on 23rd September. The summons was served upon the defender personally on 24th September. Arrestments upon the dependence of the action were used in the hands of John Walls' trustees of the same date as the arrestments to found jurisdiction.

In the action of multiplepoinding it was pleaded against Drynan that the action and diligence on which his claim was founded were inept.

The Lord Ordinary ( M'laren) found, with reference to the claim of Drynan and his mandatory, “that when the summons at their instance, containing a warrant for arrestment, passed the signet, jurisdiction had not been founded against Thomas Walls, and consequently that the said warrant of arrestment, and the execution of arrestment following thereon, are null and ineffectual, &c.

“ Opinion.—…. The third and only remaining question is, whether the arrestment which was used by the creditor Drynan to found jurisdiction is well laid on in view of the fact that the letters of arrestment were signeted before the signeting of the summons, but were not executed until after the signeting of the summons. The letters of arrestment were signeted 20th September, the summons was signeted 21st September, and the letters of arrestment were executed on the 23rd September. These are the material dates.

“In the argument before me it was not contended

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that this Court had jurisdiction over the debtor otherwise than as was constituted by the arrestment. And it is evident that an arrestment which is to be used for the purpose of founding jurisdiction must be executed before any act of jurisdiction can be done, because a mere issue of letters of arrestment attaching nothing is no ground of jurisdiction against anyone. Now, in the present case the arrestment had not been executed at the time when the summons passed the signet, and the question is whether jurisdiction is necessary in order to support the issue of a summons by a writer to the signet against a foreigner. If the summons were no more than a statement of the pursuer's case, together with a warrant for summoning the defender to enter appearance and to plead, I confess I should have no great difficulty in holding that it might be written, signed, and sealed before the arrestments were laid on. I think, for example, that a petition or a note of suspension and interdict might be prepared and signed by the petitioner or complainer in anticipation of jurisdiction being constituted against the defender by arrestment. In such a case jurisdiction only begins when an order of service is pronounced by the officiating judge. But the case of a summons is different. It is not only a warrant for service, but it is in form and substance a warrant for decree against the defender unless he shall show a ‘reasonable cause to the contrary.’ The issue of a summons is accordingly an act of jurisdiction, as indeed appears from the consideration that in our older practice the summons was preceded by a bill, and hore to be granted ex deliberatione dominorum. I am therefore of opinion that the decree in question (that of John Drynan and mandatory) is defective on the ground of want of jurisdiction, and that the arrestments used in the action cannot compete with those of the other opposing creditors.”

Drynan reclaimed, and argued—The question here was, when was the action raised? There was jurisdiction, because the action was raised after the 23rd September, when the letters of arrestment to found jurisdiction were executed. The respondents were wrong in contending that the action was raised on 21st September. An action was raised on the date of the execution of the summons— Alston v. M'Dougall, November 18, 1887, 15 R. 78. The Lord Ordinary stated that a summons was a warrant for decree against the defender, but it was not so without service. Whether, a signeted summons was analogous to a petition with an order for service on it or not, the question remained whether the signeted summons, or a petition with such an order on it, was an exercise of jurisdiction. The only warrant on a signeted summons was for service, and the only ground on which that proceeded was, that a complaint was made to Her Majesty by one of her lieges. The signeting of a summons was not an act of jurisdiction. It was not the case that in the older practice a summons was always preceded by a bill; that was only required for privileged summonses—Stair, iv. 3, 20, 27, 28, 32, 33; Shand's Practice, 230; Beveridge's Practice, 234. Jurisdiction was not necessary in order to have the summons signeted— Dickson, De Wolf, & Company v. Wilkie, June 25, 1859, 31 Jur. 595. The time when jurisdiction was essential

was when the summons was executed—Mackay's Practice, i. 174. A summons was not in dependence until it was executed— Aitken v. Dick, June 7, 1863, 1 Macph. 1038. The time of execution was the time when the action began, for a summons was the writ by which one private party invoked the Court against another; there must be a pursuer and a defender, and it was impossible to conceive how a summons could depend until there was a defender to meet it. The respondents maintained, on the authority of Erskine, that the issuing of a summons under the signet involved an act of jurisdiction. The soundness of this authority was doubted, for Erskine, i. 3, 39, laid down that the signet was the seal of the Court of Session, and so it was natural that he should define a summons—iv. i. 4—as a writ going forth with the authority of a judge. Both these passages must be read together. The Crown was the fountain of jurisdiction in the constitutional sense, but not in the continuing sense, for its power was transmitted to the Judges. The keeper of the signet was not a delegate. Jurisdiction was confined to the judge who pronounced the law. The difference between a summons and a petition with an order for service on it was, that the latter had been considered by the Court, who might refuse to write upon it. If a summons was signeted by a writer to the signet, the keeper had no discretion but to signet it. And if the signeting of a summons was to be taken as an act of jurisdiction, just so must the signeting of the letters of arrestment be regarded, which ex hypothesi they were not. There were two stages in the Roman law, the vocatio in jus, and then the parties were in jure. It was only at the second stage that the parties were in Court. Till the execution of a summons there was only vocatio in jus, and therefore the signeting of a summons did not involve an act of jurisdiction.

Argued for the other creditors—It was necessary for the competency of a summons that arrestments jurisdictionis fundandæ causa should precede the signeting of the summons. They accepted the analogy between a summons and a petition with an order for service. The warrant of citation was an assertion of power, and neither the Crown nor the Court could issue a warrant against a foreigner without arrestment to found jurisdiction. Arrestment was necessary before any act relating to the summons was done—Juridical Styles, p. 23. At all events the practice was so, and the summons proceeded on the assertion that arrestments had been used, but this summons was not truthful in this assertion. No action could be initiated till the defender was under the jurisdiction of the Court—Ersk. Inst, i. 2, 19; iii. 6, 3; iv. 1, 1, 4; Ivory's Forms of Process, 165. The statutes as to the signeting of the summons were 33 Geo. IV. c. 74, sec. 3; 54 Geo. III. c. 137, sec. 2; 1 and 2 Vict. c. 114, secs. 16,17. The case of Dickson v. Wilkie, supra cit., was in their favour, for there the jurisdiction was sustained because the arrestments were prior to the summons. Were it not necessary to have arrestments before the summons was signeted the arrestment on the dependence of the action would confer jurisdiction. It ought to be enough that the practice was in their favour, but the reasons for the practice were plain.

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The possession of moveables by the defender did not of itself give jurisdiction, for they might be carried off, but if arrested they were made stationary, and conferred jurisdiction. The doctrine was borrowed from Holland—Voet, ii. 422. But the signeting of a summons involved a judicial act. The citation could not proceed unless there was a defender—Karnes' Historical Law Tracts, History of Court, p. 374. Without arrestments the citation of a foreigner was an order against a man over whom the Court had no power. The will of a summons was analogous to the warrant of a judge on a petition. It was even stronger, for it called on the Court to deal between two parties.

At advising—